ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 20 April 2020 DOCKET NUMBER: AR20170002795 APPLICANT REQUESTS: an upgrade of his general discharge under honorable conditions to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * Medical Documents, Department of Veterans Affairs (VA), dated 10 November 2016-3 January 2017 REFERENCES: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a stated an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. Only the honorable characterization may be awarded a Soldier upon completion of his or her period of enlistment or period for which called or ordered to active duty or active duty training, or where required under specific reasons for separation, unless an entry-level status separation (uncharacterized) is warranted. When a Soldier is discharged before expiration of term of service for a reason for which an honorable discharge is discretionary, the following considerations apply. Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s). A Soldier will not necessarily be denied an honorable discharge solely by reason of a specific number of convictions by court- martial or actions under Article 15 of the Uniform Code of Military Justice. Conviction by a general court-martial or by more than one special court-martial does not automatically rule out the possibility of awarding an honorable discharge. An honorable discharge may be furnished when disqualifying entries in the Soldier's military record are outweighed by subsequent honest and faithful service over a greater period of time during the current term of service. It is a pattern of behavior and not the isolated instance which should be considered the governing factor in determination of character of service. Unless otherwise ineligible, a Soldier may receive an honorable discharge if he or she has, during his or her current enlistment, period of obligated service, or any extensions thereof, received a personal decoration. b. Paragraph 3-7b stated a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization. It will not be issued to Soldiers upon separation at expiration of their period of enlistment, military service obligation, or period for which called or ordered to active duty. c. Chapter 14 established policy and prescribed procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities, desertion, and absence without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is unlikely to succeed or impractical. Army policy states that an under other than honorable conditions discharge is normally considered appropriate for a Soldier discharged for misconduct. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. Only a general court- martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation. Paragraph 14-12b states a pattern of misconduct consists of one of the following: (1) discreditable involvement with civil or military authorities; and/or (2) discreditable conduct and conduct prejudicial to good order and discipline, including conduct violating the accepted standards of personal conduct found in the Uniform Code of Military Justice, Army regulations, civil law, and time-honored customs and traditions of the Army. 3. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised post-traumatic stress disorder (PTSD) criteria, detailed medical considerations, and mitigating factors when taking action on applications from former service members administratively discharged under other than honorable conditions (UOTHC) and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicants' service. Although the Department of Defense acknowledges that some Soldiers who were administratively discharged UOTHC may have had an undiagnosed condition of PTSD at the time of their discharge, it is presumed that they were properly discharged based upon the evidence that was available at the time. Conditions documented in the records that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which PTSD or PTSD-related conditions may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the UOTHC characterization of service. BCM/NRs will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a characterization of service of UOTHC. Potentially mitigating evidence of the existence of undiagnosed combat- related PTSD or PTSD-related conditions as a causative factor in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. BCM/NRs will also exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. 4. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense directive to DRBs and BCM/NRs when considering requests by veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD, traumatic brain injury, sexual assault, or sexual harassment. Boards are to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based, in whole or in part, on those conditions or experiences. The guidance further describes evidence sources and criteria and requires boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. 5. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to DRBs and BCM/NRs regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief based on equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, section 1552(b); however, the ABCMR conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states he was not making rational decisions toward the end of his military service due to having mental disorders he did not know about at the time of separation. He has since been diagnosed with chronic PTSD, persistent depressive disorder, and polysubstance use disorder. 3. His records contain DA Forms 4187 (Personnel Action) reflecting his duty status changes as follows: * 10-23 June 2003 – absent without leave (AWOL) * 26 June 2003 – AWOL * 27 June-5 August 2003 – dropped from the rolls 4. The DD Form 458 (Charge Sheet), dated 1 July 2003, shows he was AWOL on 10 June 2003 and 26 June 2003. Thereafter he remained continuously absent as a deserter. 5. His records contain a DA Form 4187, dated 5 August 2003, showing his duty status changed from dropped from the rolls to present for duty on 5 August 2003. 6. The DA Form 4856 (Developmental Counseling Form), dated 5 August 2003, shows he was counseled for being AWOL and would be recommended for separation for a pattern of misconduct in accordance with Army Regulation 635-200, paragraph 14-12b. 7. On 18 August 2003, he underwent a mental status evaluation. The examiner determined he had the mental capacity to understand and participate in proceedings and was mentally responsible. He was psychologically cleared for any administrative or judicial action deemed appropriate by his command. 8. On an unknown date, his immediate commander notified him that action was being initiated to separate him for a pattern of misconduct under the provisions of Army Regulation 635-200, paragraph 14-12b. The specific reasons for the proposed action were being AWOL and desertion. The immediate commander recommended issuance of a general discharge under honorable conditions. He advised the applicant of his rights to: * consult with counsel or retain civilian counsel at his own expense * submit statements in his own behalf * obtain copies of the documents that would be sent to the separation authority supporting the proposed separation action * request a hearing before an administrative separation board if he had 6 or more years of active and Reserve military service at the time of separation * waive any of the above rights 9. On 25 August 2003, the applicant acknowledged the notification of the commander's intent to recommend him for separation for a pattern of misconduct under the provisions of Army Regulation 635-200, paragraph 14-12b. 10. On 8 September 2003, he submitted a statement in his own behalf wherein he requested retention in the U.S. Army. He believed he was a good Soldier and an asset to the Army. a. He received four certificates of achievement for outstanding performance in the 98th Maintenance Company field training exercises. He also received an Army Achievement Medal for the time he served at Fort Wainwright, AK. b. He was facing separation because he was AWOL twice. The reason he was AWOL the first time was because he was having problems with a noncommissioned officer (NCO) from his unit, 98th Maintenance Company, during in-processing. He tried to avoid the NCO to the point of failing to report for duty. He and his wife were evicted from their apartment and had nowhere to live. He decided to take his wife home and then return to Fort Wainwright and turn himself in. He was arrested by military police at the airport when he and his wife tried to leave. His commander told him that it would take at least a month to complete all the paperwork. He really wanted to go through the process and get it done, but he couldn't let his wife sleep in a car for a month or more. He and his wife decided to continue with the plan to take her home to her grandmother's house in South America. This is when he was AWOL for the second time. After he had taken her home and was sure she was safe, he returned and turned himself in to the military police. c. He realized he made a lot of mistakes. He was very confused and very stressed out when he made these wrong decisions. From the consequences and with time, he learned that no matter what the problem is, he should always use his chain of command to find a solution to the problem. 11. On an unknown date, his immediate and intermediate commanders recommended his separation under the provisions of Army Regulation 635-200, paragraph 14-12b, with a general under honorable conditions discharge prior to his expiration of term of service. The intermediate commander requested waiver of further rehabilitative requirements. 12. On an unknown date, the separation authority approved the applicant's separation for a pattern of misconduct under the provisions of Army Regulation 635-200, paragraph 14-12b, with characterization of his service as general under honorable conditions. The separation authority waived further rehabilitation requirements. 13. He was discharged by reason of misconduct on 6 October 2000 under the provisions of Army Regulation 635-200, paragraph 14-12b. He completed 3 years, 2 months, and 5 days of net active service. His service was characterized as general under honorable conditions. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was awarded or authorized the: * National Defense Service Medal * Army Service Ribbon * Marksman Marksmanship Qualification Badge with Rifle Bar (M-16) 14. On 8 June 2005, the Army Discharge Review Board determined the applicant was properly and equitably discharged and denied his request for a discharge upgrade. 15. He provided his VA medical documents showing he was admitted to the hospital on 10 November 2016 and discharged on 3 January 2017. The doctor's diagnoses upon his discharge were chronic PTSD; persistent depressive disorder; polysubstance use disorder; enlarged liver; and psychosocial stressors due to being homeless, unemployed, and having child support issues. 16. On 6 March 2020, the Army Review Boards Agency Psychologist rendered an advisory opinion in the processing of this case. The applicant's military and military medical records and the electronic VA medical record were reviewed. The psychologist opined that per the 3 September 2014 Secretary of Defense liberal guidance memorandum and the 25 August 2017 clarifying guidance, there was no documentation to support a behavioral health diagnosis at the time of his discharge. While the VA has diagnosed him with PTSD, they did not find it to be service connected. Based on medical and psychiatric evaluations conducted prior to his discharge, the applicant met retention standards at the time of discharge. There is no service-connected behavioral health diagnosis to consider with respect to mitigation of his misconduct. 17. On 13 March 2020, the advisory opinion was forwarded to the applicant for acknowledgement and/or response. He did not respond. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicants request, supporting documents, evidence in the records, a medical advisory opinion and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, VA documents, his record of service, the frequency and nature of his misconduct, and the reason for his separation. The Board considered the medical records and conclusions of the advising official. The Board concurred with the medical advisory opinion finding insufficient evidence of in-service mitigating factors to overcome the misconduct. While the VA has diagnosed him with PTSD, they did not find it to be service connected. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XX :XXX :XXX DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170002795 8 1